Complainant

Respondent

Anonymised Parties

A Security Operative (2)

A Transport Company

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00011259-001

11/05/2017

The complainant is employed as a police officer (not in the Garda Siochana).

A dispute arose regarding the arrangements related to attending court and disciplinary action resulted against him and a colleague. (This is one of two similar cases, which, with the consent of the parties were heard simultaneously. Both cases were the same except in respect of some detail and my recommendations in each case are accordingly similar).

The complainant says that the policy under which he was disciplined had not been communicated to him and he was not aware of its existence.

He went home after the court proceedings in which he was involved had concluded and this was in line with the traditional policy.

It was clear that, at the very least there had been no communication of the new policy until after the incident for which he was disciplined.

He attended what he understood was an informal meeting on September 21^st 2016 but this formed part of the disciplinary investigation which he says was generally flawed as he was not given the right to representation or presented with the case or evidence against him.

The respondent outlined its policy on the issue of when an officer might not have to return to duty.

The disputed issue relates to an officer’s entitlement to go off duty after the court appearance.

Such a right exists in relation to certain circumstances but, according to the respondent had been changed in respect of the circumstances attaching to the current case.

The decision maker in the disciplinary case gave evidence that he believed that the complainant was aware of the policy change. It had been placed on notice boards and communicated to staff. He said in evidence that he ‘was in no doubt’ that both complainants in the cases were aware of the changed policy.

A superior officer had tried to contact the complainant (and his colleague) on the days but both of their mobile telephones were switched off.

The process, while delayed was fair and the complainant was accorded his rights to representation. The sanction was an appropriate one in the circumstances.

There is confusion about how effectively the changed policy had been communicated to the complainant and his colleagues.

It places an Adjudicator in an especially difficult situation when police officers are offering conflicting versions of the facts.

The sanction in the case was an oral warning which was issued on March 3^rd 2017 and expired on September 10^th, some weeks before the hearing took place on October 4^th 2017.

Disciplinary warnings cease to have any existence once they expire; they are referred to as being ‘expunged’. A simple on-line search for a definition of ‘expunge’ produces the following; ‘obliterate or remove completely’.

This carries a degree of finality and does not leave much room for doubt as to its meaning.

It is hard to know what more an adjudicator could do to provide the complainant with a remedy.

On the complaint form he stated that he was ‘seeking for my sanction to be withdrawn’.

In circumstances where it already has been withdrawn it is hard to know what additional force could be added to this.

The respondent confirmed to the WRC in writing before the hearing and orally on the day that the warnings had been removed from the complainant’s file. The complainant had been made aware of this by his trade union before the hearing and it is difficult to understand why the complainant persisted with the need for a hearing

Of course, a complainant will be entitled to remedy where a process has been clearly flawed and obvious injustice has been done, for example in respect of the severity of the sanction and its future implications for the employee.

But an honest decision by an internal decision maker, even if mistaken, (and I do not say it was mistaken) will not fall into this category in the absence of very major procedural flaws, injustice in respect of the sanction. It is not the position of the WRC Adjudicator to substitute him or herself for the workplace decision maker unless these tests are met.

The sanction was the mildest available and has now expired, as noted above. The complainant says he was not given the opportunity of representation or presented with the case against him. This appears to relate only to the meeting of September 21^st which the respondent described as an informal meeting.

It appears the formal disciplinary process was conducted thereafter in line with required standards.

The respondent’s communication of changes in its policies clearly leaves something to be desired and it would be a surprise, and a disappointment if some lessons have not been learned from this episode for the future.

On the other hand, it is not easy to believe that the complainant had no knowledge of the changed policy, although it is possible. Certainly, the fact that neither the complainant or his colleague could be contacted by mobile phone is a remarkable coincidence.

Nonetheless the complainant has made something of a mountain out of a molehill and his complaint fails, not least on the basis of the ‘de minimis non curat lex’ principle, which generally translates as ‘the law does not concern itself with trifles’.

For the reasons outlined above I do not uphold complaint CA-00011259-001 and it fails.

Discipline, expired warning.